Twitter’s controversy over Terms of Service (Updated)

Twitter is at the center of a controversy that started out with that …

Microblogging/social messaging service Twitter has become the center of a new debate about online harassment and what services' responsibilities are the protect their users. What started out as the fairly run-of-the-mill harassment of a female user has turned into a much larger controversy over terms of service, the definition of a community, and what protections the site might have under the law.

He said, she said

The sequence of events began like this: Ariel Waldman, now community manager for Twitter competitor Pownce (but was apparently not in this position when the issue began) became the subject of what she characterizes as harassing "tweets" (140-character messages sent to the service, usually broadcast to the public) last June containing her full name, e-mail address, and disturbing comments. At that time, she reported it to Twitter's community manager, who subsequently removed the offending user's updates.

According to Waldman's blog, she continued to be harassed for the remainder of the year, while the harassment began to spread between both Twitter and Flickr. Flickr reportedly banned the user in question and removed all instances of harassment, while Twitter did nothing in response to her attempts to report them until sometime this March. The company finally responded at that time, simply stating that the user was unquestionably "mean" but that since nothing illegal had been done, the account would not be banned.

This is where the disagreement between Waldman and Twitter comes in, as the issue to her was not legality, but harassment as it related to Twitter's Terms of Service, which the company openly said was modeled after Flickr's. The TOS clearly states that users "must not abuse, harass, threaten, impersonate or intimidate other Twitter users." Waldman chatted on the phone with Twitter CEO Jack Dorsey about the issue; according to Waldman, Dorsey apparently said that the company doesn't like to ban users for fear of a lawsuit. He also allegedly said at the time that Twitter had never dealt with stalkers before. Finally, in April, Dorsey wrote Waldman and said that after reviewing the matter further, the company decided not to get involved and that the TOS would be updated. "[G]ood luck with resolving the problem," he wrote.

Those annoying Terms of Service

Twitter cofounder Biz Stone posted on GetSatisfaction that when the company reviewed the offender's account, the team determined that the tweets were not a violation of the TOS. Stone said that the person responsible for the account has voluntarily removed it, and therefore it is no longer available for public review. He also stated that "Twitter is a communication utility, not a mediator of content." Since then, Twitter has apparently tasked its lawyers with a review and update of the TOS, which has created further uproar as Waldman's story has become more and more public.

In a different GetSatisfaction post, Twitter product manager Jason Goldman stated, "Specific physical threats, certain legal obligations, privacy breaches of specific types of information (e.g. SSN, credit cards), and misleading impersonation are some cases where we may become involved and potentially terminate an account." Unfortunately, since the harasser's account is no longer available, we are unable to see exactly what he or she may have said and judge how that fits into this spelling out of the policy. Waldman's pointed out on her blog that some of the tweets contained the word "cunt," although when we spoke with Waldman over e-mail, she declined to elaborate on what else her harasser said on Twitter (according to Valleywag, Waldman was also called a "crack-whore" and accused of participating in lesbian porn).

"It feels like their decision to revise their TOS instead of deal with the situation is an admission of guilt," Waldman told us over e-mail. "Twitter's response seems to focus on calling themselves a 'communications utility' instead of a community, however, their TOS was inspired by Flickr (a service that considers themselves a community and is known for taking down even questionable harassing content)."

Although we don't know whether Waldman's harasser made any specific threats, we do have some clue as to what other types of things Twitter has banned users for in the past. Chris Brogan has a piece on a Twitter user named "foulbastard" and how he managed to get himself banned from the site. This individual apparently created a new account, called "TheBreasts," that was apparently meant to focus on photos of breasts submitted by other Twitter users. Without explanation, Twitter stopped allowing TheBreasts to tweet. While this sequence of events appears to be very mundane, if Twitter chose to ban users in the past over what is apparently questionable sexually-related content, it would seem reasonable to expect that the company would also ban users who are harassing other users and posting private information about them.

Stone did not respond to our requests for comment after several days, although another Twitter cofounder, Evan Williams, posted in the comments of yet another blog, admitting, "[W]e probably shouldn't have borrowed Flickr's TOS. Like a lot of startups, we threw something up early on and didn't give it a lot of thought. Our bad." Twitter's bad, indeed. Although there seem to be few repercussions for attempting to retroactively enforce a new TOS that does not involve Twitter in mediating users' harassment claims, many users are still left dissatisfied with the situation, including Waldman.

However, John Dozier Jr., a managing partner at Dozier Internet Law, told Wired that Twitter may have risked its Section 230 protections the first moment it changed anything on the offending user's account. "If they've edited content based on their subjective perspective, they put their immunity at risk and virtually their entire online business, because then they'd be liable to defamation claims or anything else that a publisher would," Dozier said.

Waldman indicated to us that she doesn't plan to take any legal action against the site (yet?), although she does plan to continue raising awareness about her experience.

Update: I just received an e-mail from Biz Stone that got caught up in our spam filters, so I just want to publicly clarify that Twitter did, indeed, attempt to get back to us in time. Stone said that, upon review of the account, "only one post uses the word 'cunt'—again without mention of a specific name. None contain the word 'crack' or 'whore.' None contain threats, physical or otherwise. Most are insults about physical or personality attributes without referring to anyone specifically."

He also clarified that Twitter has not yet edited its TOS, although it is currently in a state of review. "Our Terms of Service is two years old and in need of an update beyond just the section covering the code of conduct. We were engaged in this edit before this incident and there is no connection. There are issues of liability, indemnity, and various legalese that need to be brought up to speed with the current state of Twitter. Until that document is updated we stand behind our current ToS, we care about users, and we take every complaint seriously."